Majority
p. 99Robinson and Hartshorne against Fisher.
Headnote
In assumpsit a plea that theTO a declaration on a promissary note, the defendant pleaded n bar, that the assumpsit was by him and Robinson jointly, and
p. 100
promife was by the defendant and one of the plaintiffs jointly, and not by the defendant separately, must be pleaded in abatement: if it be pleaded in bar, the plaintiff may treat it as a nullity for want of the affidavit, and enter a default as for want a plea.
not by him separately.[1] The plaintiffs’ attorney considering the, plea a nullity, entered a default.
Woods,
moved to set it aside, and cited in support of the plea a precedent in 3 Went. 114. He said also, no plea .could be treated as a nullity, unless it appeared on the face of it to be frivolous. In all other cases the court would drive the defendant to his demurrer,
G. Ogden, contra.
The matter of this plea is clearly in abate- . ment; and if so, might for want of being verified by affidavit, be treated as a nullity. 1 Sell. 301 .
Per curiam, delivered by
This is a dilatory P^ea’ L'-le definition of which is, that it only delays the suit by questioning the propriety of the remedy, rather than by denying ^1<3 'njury. Thus the injury complained of here, is not denied, but that it was committed with another. If it be a plea of this description, it wants the verification required by statute, and is therefore bad. Even as a plea in bar, I should not be for countenancing it, for it is totally out of the usual form of general issue which it was intended to try, and which would have answered as well, and furnished a record in the common form.